This is why we don't leave justice in the hands of victims

As County Court Chief Judge Peter Kidd methodically went about sentencing George Pell this week, it occurred to me that he took a position very few have taken, at least in public.

In this most polarised of public dramas, Chief Judge Kidd was a meticulously moderate character: a mix of just rage and compassion – not just for Pell’s victims, but for the convicted cardinal himself.

It’s this last point I want to consider, not because it is necessarily the most important, but because it distilled for me what makes the law so magnificent, but so destined to disappoint.

An artist's sketch of George Pell at the County Court on Wednesday. Credit:AAP

Speaking with friends afterwards, it was notable how many were struck by how Chief Judge Kidd’s judgment seemed to shift constantly between condemnation and sympathy. How he’d describe Pell as “breathtakingly arrogant” and having acted with “callous indifference”, abusing the considerable power disparity between him and his victims, then pivot to considering just how stressful the trial process must have been on Pell, and how he stood to suffer additionally from his unique public profile.

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Part of these friends' reaction is no doubt an understandable unfamiliarity with the law. A judgment is not an act of advocacy. It is not an essay arguing a single point relentlessly until its inevitable conclusion, but the balancing of competing interests and principles. That’s a kind of deliberation we rarely see in public because our media is so allergic to it. But that rareness only makes it more valuable.

We’re in an era where anger dominates our sense of morality.

We’re in an era where anger dominates our sense of morality. To be angry is to be righteous, while to temper that anger is to be somehow morally complacent, apologetic, complicit even. Of course, there’s nothing new – or wrong – in anger as a moral response. It’s a crucial part of our moral vocabulary, particularly in the face of something heinous.

But there is something new – and wrong – in it being our only moral resource, our only way of demonstrating moral seriousness. That’s why the phenomenon of outrage culture is so runaway: we find precious few alternatives for expressing our moral agency, so we get angry at the minor and the momentous alike. The result is that we’re forgetting how to hold our anger in tension with anything else, especially in serious cases.

Illustration: Andrew DysonCredit:

Chief Judge Kidd’s judgment, though, was full of tensions. For him, Pell is emphatically guilty of a terrible crime, but that guilt does not license absolutely any response. So, Chief Judge Kidd would "utterly condemn" the "witch hunt" that followed Pell’s conviction. He would express sympathy for Pell’s position as a "publicly vilified figure". And he would regard all this as a source of punishment in itself. Then he would acknowledge Pell’s lifetime of service to the church and even find he was of good character in the years since the attack.

Very few people convinced of Pell’s guilt would acknowledge such things. Indeed, many will have positively resented Chief Judge Kidd for doing this.

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The viscerally emotive nature of Pell’s crimes, especially in the broader context of the Catholic Church’s crimes of sexual abuse, tempt many of us into regarding him as some incarnation of evil. From that position, he deserves whatever comes his way. The abuse, the vilification, the inhuman stress of this process – it’s not mitigation, it’s comeuppance. Any expression of sympathy or understanding is then experienced as an insulting indulgence.

In the case of survivors of sexual abuse and their families, I wouldn’t begrudge them that response because I cannot even begin to imagine the pain that drives it. But as a broader social response, it is dangerous.

There’s a reason we do not leave justice in the hands of victims. And there’s a reason we give it over to the formal, rule-laden, stuffy theatre of the courtroom. Justice often requires passions to be controlled because it is not simply about punishment. It is also about dignity.

That’s very easy to understand when it comes to the dignity of victims. In some sense, the entire process of prosecution is meant to serve that ideal, even if the law sometimes fails in that task. What’s much harder to grasp is the importance of the dignity of the criminal.

Justice often requires passions to be controlled because it is not simply about punishment. It is also about dignity.

When they punish, courts do something seriously grave. They enact state violence upon someone. They might even end up destroying them. That is not to say they do something wrong; indeed, the idea is that such punishment is right in the circumstances. But we cannot be just if we fail to recognise this gravity. And we can only do this if we recognise that whatever horrors a person has committed, they remain a human being.

Chief Judge Peter Kidd at Melbourne County Court for the sentencing of George Pell.

I suspect Chief Judge Kidd was reckoning with precisely that when he referred to Pell’s predicament as "an awful state of affairs". At no point did the judge shirk the seriousness of the crime, and he highlighted at length the account of Pell’s surviving victim. And yet he still addressed Pell in his full humanity: complex, flawed, contradictory, guilty, but entitled to an inalienable dignity even in the process that was about to incarcerate him.

If we still believe in some concept of inherent human dignity, it’s precisely at moments like this that it matters. In the same way that human rights matter most when we’re sorely tempted to dispense with them, human dignity becomes most meaningful when we’re tempted to strip it; when we’re confronted with those we think least deserve it; when we’re asked to give it to those who have done something terrible or even denied that dignity to others. That may not satisfy our anger. It might even leave us disappointed. But it’s in that very tension that we discover the difference between vengeance and justice.